Introductory Note
The Colorado Council of Mediators ("CCMO") revised Code of
Professional Conduct for Mediators is based in large part on
the standards of conduct fashioned by the Joint Committee on
Standards of Conduct, which was initiated by the American
Arbitration Association, the American Bar Association and the
Society of Professionals in Dispute Resolution. CCMO
gratefully acknowledges the work of this group.
Preface
Mediation is a process in which an impartial third party, a
mediator, facilitates the resolution of a dispute by promoting
voluntary agreement (or "self-determination") by the parties
to the dispute. The Mediators Revised Code Of Professional
Conduct gives meaning to this definition of mediation.
This code of conduct is intended to perform three major
functions:
- to serve as a guide for the
conduct of mediators;
- to inform the mediating
parties; and
- to foster public confidence in mediation
as a process for resolving disputes.
To further promote such public
confidence, mediators are encouraged to engage in efforts to
educate the public about the value and use of mediation,
provide pro bono mediation service and assist new
practitioners in the field.
The code is intended to be a dynamic document and mediators
are encouraged to participate in an ongoing dialogue with
respect to the code, its meaning and its ramifications.
I. Self Determination: A mediator should recognize that
mediation is based on the principle of self-determination by
the parties.
Self-determination is the fundamental principle of mediation.
The mediator should rely upon and encourage the ability of the
parties to reach a voluntary, uncoerced agreement. The parties
decide whether and under what conditions they will reach an
agreement or terminate mediation.
COMMENTS:
The mediator's primary role is to facilitate the voluntary
resolution of disputes. The mediator should provide
information about the process, define issues, and help parties
explore options. A mediator should ensure that the parties
have the opportunity to consider all proposed options and to
accept or reject them.
A mediator cannot personally guarantee that a party has made a
fully informed choice in reaching an agreement, but the
mediator should ensure that the parties are aware of the
importance of making informed decisions and, where
appropriate, the value of consulting other professionals.
II. Impartiality: A mediator should conduct the mediation in
an impartial manner.
The concept of mediator impartiality is central to the
mediation process. A mediator should mediate only those
matters in which the mediator can remain impartial and
evenhanded. If the mediator is unable to conduct the process
in an impartial manner, the mediator should withdraw.COMMENTS:
A mediator should avoid conduct that gives the appearance of
partiality toward one of the parties. The quality of the
mediation process is enhanced when the parties have confidence
in the impartiality of the mediator.
The primary purpose of a mediation is to facilitate a
voluntary agreement. A mediator should therefore refrain from
providing professional advice, and should recommend, where
appropriate, that parties seek outside professional advice,
including legal advice.
III. Conflict of Interest: A mediator should avoid involvement
where it may be inferred that the private interests of the
mediator could conflict with those of a party.
A mediator should avoid conflicts and the appearance of
conflicts of interest that could reasonably be seen as raising
a question about the mediator's neutrality. A mediator should
disclose all actual and potential conflicts of interest
reasonably known to the mediator. If all parties agree to
mediate after being informed of actual or potential conflicts,
the mediator may proceed with the mediation. If, however, the
conflict of interest appears to be so severe that it casts
serious doubt on the integrity of the process, the mediator
should decline to proceed.
COMMENTS:
There may be strong pressures on the mediator to settle a
particular case or cases. The mediator's commitment should be
to the parties and the process. Pressures from outside of the
mediation process should never influence the mediator to
coerce parties to settle.
A mediator should disclose any potential conflicts of interest
in recommending the services of individual professionals.
Alternatively, a mediator may make reference to professional
referral services or associations that maintain rosters of
qualified professionals.
A mediator should continue to avoid the appearance of a
conflict of interest during and after the mediation. Without
the consent of all parties, a mediator should not subsequently
become the representative for one of the parties in a related
matter, or in an unrelated matter under circumstances which
would raise legitimate questions about the integrity of the
mediation process.
IV. Competence: A mediator should mediate only when the
mediator has the necessary qualifications.
Any person who offers to serve as a mediator gives the parties
and the public the expectation that the mediator has the
competency to mediate effectively. Training and education in
mediation are necessary for effective mediation. The mediator
should also have familiarity with the general principles and
law governing any area in which the mediator is willing to
serve.
COMMENTS:
Mediators should refer to the recommended minimum guidelines
for the training of domestic and civil mediators endorsed by
CCMO and the Colorado Bar Association.
When a mediator does not possess the required skills, the
mediator should seek a co-mediator trained in the necessary
discipline, seek the assistance of a substantive expert in the
field, or refer cases to other mediators who are trained in
the required field of expertise.
A mediator should have information available for the parties
regarding the mediator's relevant training, education and
experience.
IV. Confidentiality: A mediator should maintain the
confidentiality of mediation communications.
Confidentiality in Colorado is defined initially by the
Colorado Dispute Resolution Act, CRS § 13-22-301, et seq. The
general rule is that a mediator may not voluntarily disclose
and may not be required to disclose any information regarding
either a mediation communication or a communication provided
in confidence to the mediator. Exceptions to this
"non-disclosure requirement" include
- written consent of all
of the parties and the mediator,
- a mediation communication
which reveals the intent to commit a felony, inflict bodily
harm or threaten the safety of a child under the age of
eighteen years,
- the communication is required by statute to
be made public, and
- in an action alleging willful or wanton
misconduct of the mediator.
COMMENTS:
The mediator should be aware of the legal limits to the
non-disclosure of mediation communications and of any
settlement agreement reached. The mediator should conduct the
mediation so as to provide the parties the greatest protection
to confidentiality afforded by law and mutually agreed to by
the parties.
Confidentiality is primarily governed by the Colorado Dispute
Resolution Act, CRS § 13-22-301, et seq. Examples of other
statutes that may limit non-disclosure include the federal
Administrative Dispute Resolution Act and the Freedom of
Information Act, disclosure laws from other states that may
have legal jurisdiction, and other Colorado statutes such as
the Child Protection Act of 1987 and those that allow access
to settlement information by third parties whose interests are
affected.
Most of the Colorado Dispute Resolution Act exceptions to
non-disclosure are permissive. If faced with a situation where
disclosure is permitted but not required, the mediator must
look to his or her own conscience and reference other sources
to decide whether disclosure is appropriate.
A critical part of a mediator's role is to ensure the parties
are familiar with their own and the mediators' bounds of
confidentiality and non-disclosure. The mediator should
address the limitations and exceptions to disclosure prior to
the mediation or in the opening statement and address
confidentiality in the Agreement to Mediate.
A mediator should assume any communication in private session
is meant to be kept in confidence unless the mediator is
certain or has confirmed that part or all of this
communication may be shared with another party in the
mediation.
The Colorado Dispute Resolution Act does not specifically
address whether an attorney representing a party is bound by
the statute's confidentiality requirements. However, because
the lawyer is acting as the legal representative of a party,
the attorney is likely bound to the same non-disclosure agreed
to by the attorney's client.
When an attorney for a party is not present at a mediation,
the mediator should not assume that the party has consented to
allowing the mediator to communicate with the attorney. The
mediator should obtain a release which authorizes the
communication. The mediator may want to include the release
within the Agreement to Mediate.
Other individuals attending the mediation (observers, experts,
etc.) may not be limited by the Colorado Dispute Resolution
Act in their disclosure of mediation communications. The
mediator should ask observers or other attendees to sign a
confidentiality agreement. Such an agreement may be
incorporated into the Agreement to Mediate.
A mediator sometimes is asked by a court for information or
opinions about the dispute or the mediation. Unless authorized
by a specific exception, the mediator may only report to the
Court, if required, whether the parties appeared at a
scheduled mediation. It is inappropriate for a mediator to
report, for example, whether a party mediated in good faith.
The Colorado Dispute Resolution Act provides that a party is
not precluded from later obtaining information otherwise
discoverable even though the information was first brought to
the party's attention during the mediation.
The Colorado Dispute Resolution Act allows the gathering of
information for research, education and performance monitoring
of the provider. Confidentiality should not be constructed to
limit or prohibit effective informational gathering by
responsible persons, if those persons are obligated to the
same degree of confidentiality as the mediator. Under
appropriate circumstances, researchers should be permitted to
obtain access not only to statistical data, but with the
permission of the parties and the mediator or mediation
organization, to individual case files, observations of live
mediations, and interviews with participants.
VI. Quality of the Process: A mediator should conduct the
mediation fairly and diligently.
A mediator should work to ensure a quality process in order
for mediation to be effective. A quality process requires a
commitment by the mediator to diligence and procedural
fairness. There should be adequate opportunity for each party
in the mediation to participate in the discussions. The
parties decide when and under what conditions they will reach
an agreement or terminate a mediation.
COMMENTS:
A mediator should agree to mediate only when the mediator is
prepared to commit the attention essential to an effective
mediation.
The mediator has a duty to assess the dispute and make a
determination that the case is appropriate and suitable for
mediation.
Mediators should only accept cases where they can satisfy the
reasonable expectations of the parties concerning the timing
of the process.
The parties and mediator should decide who will attend the
mediation. The parties and mediator may agree that others may
be excluded from particular sessions or from the entire
mediation process.
In the event that the parties cannot reach an agreement even
with the assistance of a mediator, it is the responsibility of
the mediator to make the parties aware of the deadlock and
suggest that negotiations be terminated. The mediator may
encourage the parties to explore other dispute resolution
options.
A mediator should not agree to mediate a dispute or should
terminate a mediation under the following circumstances:
- the incapacity of a party;
- a lack of commitment by the
parties to the mediation;
- the mediation is being used to
further illegal conduct;
- an inability of the mediator to
remain impartial; or
- a lack of competence by the mediator
to handle the mediation effectively.
A mediator should postpone a mediation if any party is unable
to participate due to drugs, alcohol, or other temporary
physical or mental incapacity.
If the parties reach an agreement which the mediator feels is
illegal, the result of false information or the result of bad
faith bargaining, the mediator should withdraw or terminate
the mediation. If no confidential mediation communications are
disclosed, the mediator may also inform one or more of the
parties of the difficulties which the mediator sees in the
agreement.
VII. Advertising and Solicitation: A mediator should be
truthful in advertising and solicitation for mediation.
Advertising or any other communication with the public
concerning services offered or regarding the education,
training, and expertise of the mediator should be truthful.
Mediators should refrain from promises and guarantees of
results.
COMMENTS:
Communication with the public should be kept to a high
standard in order to educate and instill confidence in the
mediation process.
In an advertisement or other communication to the public, a
mediator may make reference to meeting state, national, or
private organization qualifications if the entity referred to
has a procedure for certification and the mediator has been
duly granted the requisite status.
VIII. Fees: A mediator should fully disclose and explain the
basis of compensation, fees, and charges to the parties.
The parties should be provided sufficient information about
fees at the outset of a mediation to determine if they wish to
retain the services of a mediator. If a mediator charges fees,
the fees should be reasonable in light of the mediation
service, the type and complexity of the matter, the expertise
of the mediator, the time required, and the rates customary in
the community.
COMMENTS:
It is highly recommended that arrangements regarding fees be
set forth in writing.
A mediator who withdraws from a mediation for personal reasons
should return the fee to the parties unless the parties and
the mediator have agreed otherwise.
A mediator should not enter into a fee agreement which is
contingent upon the result of the mediation or amount of the
settlement.
Co-mediators who share a fee should hold to a standard of
reasonableness in determining the allocation of fees for each
of the mediators.
No commissions, rebates, or similar forms of remuneration
should be given or received for referral of clients for
mediation services.
The mediator should not use knowledge obtained in a mediation
for personal gain or advantage.
IX. Obligations to the Mediation Process: Mediators should
strive to improve the practice of mediation.
Mediators have an obligation: to use their knowledge to help
educate the public about mediation; to make mediation
accessible to those who want to use it; to correct abuses; and
to improve their professional skills and abilities.
COMMENTS:
A mediator should cooperate in establishing and maintaining
the quality, qualifications, and standards of the profession.
Adopted (in its revised form) May, l995
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